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22 Jan

CRIMINAL LITIGATION WEEK 11 (CONSTITUTIONAL SAFEGUARDS)

WEEK 11.

CONSTITUTIONAL SAFEGUARDS TO ENSURE FAIR TRIAL OF AN ACCUSED PERSON.

Especially Section 34, 35 and 36 of the 1999 Constitution

–             RIGHT TO BE INFORMED (IN DETAILS) OF THE CRIME ALLEGED: in the language he understands (prior to the trial, at the beginning of the trial or when he is arraigned) Section 36(6)(a). With competent interpreter Nwachukwu v The State. At his request[1]. He need not be informed where he is charged for a graver offence but convicted of a lesser offence-Maja v The State. In custody note also Section 35(3)

– RIGHT TO FAIR HEARING: in public[2] within a reasonable time…See the whole of Section 36 CFRN. Audi alteram partem (both parties must be heard) and nemo judex in causa sua (a person shall not be a judge in his own case). No bias[3]Gani Fawehinmi v NBA. Justice must be done actually (and manifestly from a reasonable man’s point of view). Garba v University of Maiduguri, Olatubosun v NISER.

PRESUMPTION OF INNOCENCE: until his guilt is proved beyond reasonable doubt by the prosecution-36(5). However, facts within his knowledge should be proved. Okoro v The State. Doubt can be resolved in favour of the accused-Section 135 EA, COP v Tobin, Edet V Board of Customs and Excise

– RIGHT TO ADEQUATE TIME AND FACILITIES TO PREPARE FOR DEFENCE/TRIAL: Section 36(6b). Where deserving, court can discretionarily (although more compelling in Capital offences) grant an adjournment especially for accused to obtain counsel or material witnesses (which he can call and has not been neglecting to call)-Gokpa v The C.O.P.

– RIGHT TO COUNSEL: Accused can (and should be informed that he can) defend himself in person or by a legal practitioner of his choice-Section 36(6)(C) CFRN. Provided Legal practitioner is not under any disability as various may exist-Awolowo v Usman Sarki. Check SAN Priviledges Rules which excludes SAN from appearing in inferior courts. Ariori v Elemo. Note Uzodinma v COP for nullity of Area Edict restricting LP appearing in inferior court. Legal representation is mandatory in life imprisonment and Capital Offences-Josiah v State 352 CPA, 186 CPC and Legal Aid can be granted to an indigent accused (see Legal Aid Discussed earlier).

– RIGHT TO EXAMINE WITNESSES CALLED BY THE PROSECUTION: Section 36(6)(d). Application to cross-examine expert witness should not be treated lightly. Tulu v Bauchi Native Authority adjournment to secure attendance of a vital or relevant witness should be considered judiciously-Idrisu v The State, Josiah v The State. Subponea or witness summons can also be granted to secure such attendance.

– RIGHT TO A COMPETENT INTERPRETER: where he does not understand the language of the court… at no fee-Gwonto v The State.

 

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[1] Meaning that the accused should ask the interpreter at trial as he may be estopped from complaining afterwards-Gwonto v The State, Lockman v The State.

[2] – Right to be tired in public except under certain recognised circumstances like; (See e.g. 200 ACJL); – Where Juvenile (Section 6 CYPLL); – Where Statute expressly requires it; – on grounds of public policy, decency, safety, morality, expediency and other circumstances where (in the opinion of the court) publicity would be contrary to interest of justice.

[3] University of Calabar v Esiaga, the court held that bias can arise from -pecuniary interest, blood filial or personal relationship, -natural aversion to the facts of the case.

Isochukwu

Quite eccentric really

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